Petition — Tankersley v. Trinity Presbyterian Church

CORRIE H. TANKERSLEY, et al,

Petitioners,

Vv.

TRINITY PRESBYTERIAN CHURCH

OF MONTGOMERY, ALABAMA, A

- CORPORATION, AND JOHN M. WARD,

et al, )

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

J. D. Topp, Jr.

tere Davip A. QUATTLEBAUM III

(eee | Post Office Box 2248

“Ys Greenville, South Carolina 29602

W. H. ALBRITTON

ALBRITTONS & GIVHAN

Post Office Box 880

Andalusia, Alabama. 36420

Attorneys for Petitioners

a“

TABLE OF CONTENTS

Page

a eae be sinest cae ceecccessaesic l

RE oak ieee eesbcdcccesuces l

er 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 2

oe Pe iis oo ov ccc ccc scwcd cccece 2

REASONS FOR GRANTING WRIT ............cceccees 6

i ek clneaviscssccaccs 12

APPENDIX A — Opinion Below ..............0cceceeees 3a

APPENDIX B — Judgment Below

(1) Order Denying Rehearing........................ Sa

a co csc c eb cc cree ccecs Sa

(3) Order of Circuit Court of

Montgomery County, Alabama................. 17a

APPENDIX C — Judgment of Highest Ecclesiastical

Court of The Presbyterian Church

eer eee 32a

APPENDIX D — Statement of Position of The Presby-

terian Church in the United States

EE 40a

APPENDIX E — Opinion of The Supreme Court of Georgia

in Jones v. Wolf on remand from the

ee. Ge 43a

APPENDIX F — Opinion of The Supreme Court of Florida

in Mills v. Baldwin on remand from the

Rose IIS COTTE ww ccc ce eee 46a

TABLE OF AUTHORITIES

Page

Cases:

Jones v. Wolf, 99 S.Ct. 3020 (1979), original

decision reinstated, No. 33,126 (Ga.,

ae a nr re oe 2,6,% 11,12

Maryland & Virginia Eldership v. Church of God,

5 Re El. rr err ree Reet 9

Mills v. Baldwin, 362 So.2d 2 (Fla. 1978), va-

cated and remanded 99 S.Ct. 3105 (1979),

original decision reinstated, No. 51,588

‘ty ee 2, , Re ee ara eee errr e 9

Serbian Eastern Orthodox Diocese v. Milivojevich,

Pe Rie | er irc re 2,6, 7,8

Watson v. Jones, 80 U.S. (13 Wall.)

OT hace dk ie N eke oe een es (me MF.

Constitutional and Statutory Provisions:

Se es OEE hon ap hob e a ceekes Ci vesawayenes 2

Se ee Sy ee Peer rere ry rr eres re rr re 2

i ee a, ee eee 2

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1979

No. 79-

CORRIE H. TANKERSLEY, et al,

Petitioners,

v.

TRINITY PRESBYTERIAN CHURCH

OF MONTGOMERY, ALABAMA, A

CORPORATION, AND JOHN M. WARD,

et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

Corrie H. Tankersley, et al, respectfully petition for a writ

of certiorari to review the judgment of the Supreme Court of

Alabama in the above entitled case.

OPINIONS BELOW

The Opinion of the Supreme Court of Alabama

(App. A p. 3a) is reported at 374 So. 2d 861. The Order of the

Supreme Court of Alabama denying rehearing (App. B p. 15a)

is not yet reported. The Order of the Circuit Court of

Montgomery County, Alabama (App. B p. 15a) is not reported.

JURISDICTION

The judgment of the Supreme Court of Alabama was en-

tered on August 17, 1979. The Order of the Supreme Court of

Alabama denying a timely petition for rehearing was entered on

2

September 14, 1979. The Order for judgment and costs by the

Supreme Court of Alabama was entered on October 2, 1979

(App. B p. 15a). The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257 (3).

QUESTION PRESENTED

Does the First Amendment as interpreted by this Court in

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872), Serbian East-

ern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), and

Jones v. Wolf, 99 S. Ct. 3020 (1979), permit a State Court to

reject the decision of the highest tribunal of a hierarchical

~ religious denomination upon issues of internal organization

and ecclesiastical law and substitute its own judgment in such

matters by invoking the doctrine of laches and estoppel where

such decision may affect the use and control of church

property?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., Amend. I:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof * * *.

U.S. Const., Amend. XIV, Sec. 1:

* * * nor shall any state deprive any person of life, liberty,

or property, without due process of law * * *.

STATEMENT OF THE CASE

Trinity Presbyterian Church of Montgomery, Alabama,

was organized by the appropriate Presbytery of The Presbyte-

rian Church in the United States (hereafter referred to as

PCUS) on July 30, 1891. At all times thereafter it was an

integral part of PCUS, subject to its form of church government

as set forth in The Book of Church Order. PCUS is, as this

Court has expressly previously held, a connectional or hierar-

chical church. Its Book of Church Order provides for ascend-

ing judicatories starting with the Session of the local church

consisting of the pastor and the ruling elders. A Session is

3

governed by and reports to a Presbytery which has jurisdiction

over a number of local churches in a specified geographical

area. The Presbytery is governed by and responsible to a

Synod which is composed of two or more Presbyteries, and the

Synods in turn are governed by and responsible to the General

Assembly, the highest court in PCUS. Section 14-5 of The Book

of Church Order states in part, ‘‘These courts are not separate

and independent tribunals. They have a mutual relation, and

every act of jurisdiction is the act of the whole Church per-

formed by it through the appropriate Church court.”’ In Section

III, Paragraph 5, of the Preface to The Book of Church Order it

is stated, ‘The courts may have authority over one or many

churches, but sustain such mutual relations as to express the

unity of the Church.”’

On September 25, 1973 the Presbytery of East Alabama

(the Presbytery governing Trinity Presbyterian Church of

Montgomery, Alabama) adopted a Resolution purporting to set

guidelines for local member churches and member ministers

who wished to withdraw from PCUS. A complaint by a

member of the Presbytery questioning the validity of the Re-

solution was on the same day filed with the Synod of the

Mid-South, which is the Synod governing East Alabama Pres-

bytery. On March 25, 1975 the Synod upheld the complaint to

the action of the East Alabama Presbytery with a dissenting

Opinion. Thereafter, the Synod duly referred the complaint to

the General Assembly for final determination and on June 14,

1976 the General Assembly of the PCUS determined as its final

judgment that the action of the East Alabama Presbytery in

adopting the Resolution in question was wholly unconstitu-

tional, hence, void and of no effect, and that any churches

purportedly dismissed thereunder remained within the juris-

diction of the Presbytery and subject to its constitutional

authority. (See App. C p. 32a)

Notwithstanding the pending complaint, on November 4,

1973, at a meeting of the congregation of Trinity Presbyterian

Church of Montgomery, Alabama, a Resolution was adopted

‘That Trinity Presbyterian Church of Montgomery, Alabama,

requests dismissal from The Presbyterian Church in the United

4

States to the Presbytery of the Evangel of the Continuing

Presbyterian Church.”* The vote was 814 for and 112 against.

There were over 1,700 members of Trinity Presbyterian

Church at that time Following this congregational action, the

six individual plaintiffs who are members of Trinity Presbyte-

rian Church filed a complaint with the Presbytery questioning

the validity of the action. At its next meeting, the Presbytery of

East Alabama approved the request of Trinity Presbyterian

Church for dismissal from PCUS to another denomination. At

this same meeting the complaint of the individual plaintiffs was

referred to the docket of the first stated meeting of Presbytery

_ after the complaint against the Presbytery action in establish-

ing guidelines for withdrawing of churches and ministers **has

been resolved by action of the Synod. . . or General Assem-

bly.”’

Notwithstanding the pending complaints, certain of the

officers and members of the local congregation thereupon be-

came affiliated with and announced their allegiance to the other

denomination and assumed control over the church properties

to the exclusion of those members who remained loyal to

PCUS. Promptly after the final judgment was rendered by the

General Assembly (the highest tribunal of PCUS), the mem-

bers of the congregation loyal to PCUS sought to regain pos-

session of the church properties in reliance upon that church

court decision. Possession was refused, and this action was

commenced in June of 1977 in the Circuit Court of Montgomery

County, Alabama.

In the meantime on May 25, 1975 an Administrative Com-

mission was appointed by Presbytery to assist the loyal minor-

ity which had been recognized by Presbytery as constituting

the congregation of Trinity.

There was no controversy in the action as to where legal

title to the church property was vested. It was conceded by all

parties concerned that it was vested in Trinity Presbyterian

Church of Montgomery, Alabama. Plaintiffs contended that

Trinity Presbyterian Church of Montgomery, Alabama was

still an integral part of PCUS and that the attempted withdrawal

5

was null and void in view of the action of the General Assem-

bly. They further contended that the defendants, having re-

nounced any allegiance to PCUS and joined another denomina-

tion, namely, Presbyterian Church of America (formerly

known as The Continuing Presbyterian Church), were no

longer members of Trinity Presbyterian Church of Montgomery,

Alabama and had no right to the property of such church.

The matter came on for a bench trial before the Honorable

G. H. Wright, Jr., Circuit Judge, who received stipulations,

took testimony and heard arguments, and on July 14, 1978 filed

his Order holding for the plaintiffs. He made extensive and well

documented findings of fact in applying the law previously well

established in Alabama based on deference to church court

decisions in matters involving church polity.

In an Opinion filed August 17, 1979 the Supreme Court of

Alabama reversed and rendered judgment for the defendants.

The Alabama Supreme Court recognized that the deter-

minative issue in the case was whether the decision by the

General Assembly of PCUS rendered June 14, 1976 was

ecclesiastical in nature and thus binding on that Court. The

Court stated, *‘We find that the portion of the above mentioned

decision, which attempts to revoke permission to withdraw

from PCUS and the Presbytery of East Alabama, given by the

Presbytery of East Alabama to local churches such as Trinity

Presbyterian, after such churches have acted and relied upon

that permission, is not ecclesiastical in nature, and therefore,

not binding on this court.’’ The Alabama Supreme Court

further held, *** * * that the failure of the appellees/plaintiffs to

follow the proper remedies provided for by the PCUS Book of

Church Order made the adoption of Trinity Presbyterian

Church’s request for dismissal by the Presbytery of East

Alabama final. Appellees/plaintiffs are now estopped from as-

serting any possible rights to dominion, possession, and con-

trol of the church corporation, and its property, in the civil

courts of this state."’ The Alabama Supreme Court thus re-

jected the decision of the highest ecclesiastical tribunal of

PCUS and substituted its own judgment in a matter of church

internal organization and ecclesiastical law, in direct conflict

6

with the teachings of this Court in Serbian Eastern Orthodox

Diocese v. Milivojevich, 426 U.S. 696 (1976).

On September 14, 1979 the Alabama Supreme Court de-

nied petitioners’ timely petition for rehearing, and this petition

for a writ of certiorari followed.

REASONS FOR GRANTING WRIT

I. The Supreme Court of Alabama Has Decided a Federal

Question of Suistance in a Way Not in Accord With the

Decision of This Court in Serbian Eastern Orthodox Diocese

v. Milivojevich.

On June 14, 1976, the General Assembly of PCUS (the

highest judicatory of such denomination) held that the action of

the East Alabama Presbytery in dismissing Trinity Presby-

terian Church from PCUS to Presbyterian Church in America

(PCA) was wholly unconstitutional and void. It further held

that any churches purportedly dismissed thereunder still re-

main within the jurisdiction of the Presbytery of East Alabama

and subject to its constitutional authority.

The trial judge held he was bound by such decision of the

church court and found for the plaintiffs who had been recog-

nized by the Presbytery as constituting the congregation of

Trinity Presbyterian Church of Montgomery, Alabama. The

Supreme Court of Alabama in reversing held it was not bound

by the decision of the General Assembly because property

rights were involved and because of laches and failure to follow

proper remedies provided by the PCUS Book of Church Order.

This specific rejection of the decision of the highest church

court by the Supreme Court of Alabama was not in accord with

the decision of this Court in Serbian Eastern Orthodox Diocese

v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed. 2d 151.

There this Court said:

In short, the First and Fourteenth Amendments per-

mit hierarchical religious organizations to establish their

own rules and regulations for internal discipline and gov-

ernment, and to create tribunals for adjudicating disputes

over these matters. When this choice is exercised and

ecclesiastical tribunals are created to decide disputes over

the government and direction of subordinate bodies, the

Constitution requires that civil courts accept their deci-

sions as binding upon them. [426 U.S. at 725-26]

Further, this Court said:

The conclusion of the Illinois Supreme Court that the

decisions of the Mother Church were ‘‘arbitrary’’ was

grounded upon an inquiry that persuaded the Illinois Su-

preme Court that the Mother Church had not followed its

own laws and procedures in arriving at those decisions.

We have concluded that whether or not there is room for

**marginal civil court review’’ under the narrow rubrics of

‘*fraud’’ or “‘collusion’’ when church tribunals act in bad

faith for secular purposes, no ‘‘arbitrariness’’ exception

— in the sense of an inquiry whether the decisions of the

highest ecclesiastical tribunals of a hierarchical church

complied with church laws and regulations — is consistent

with the constitutional mandate that civil courts are bound

to accept the decisions of the highest judicatories of a

religious organization of hierarchical polity on matters of

discipline, faith, internal organization, or ecclesiastical

rule, custom, or law, For civil courts to analyze whether

the ecclesiastical actions of a church judicatory are in that

sense ‘‘arbitrary’’ must inherently entail inquiry into the

procedures that canon or ecclesiastical law supposedly

requires the church judicatory to follow, or else into the

substantive criteria by which they are supposedly to de-

cide the ecclesiastical question. But this is exacily the

inquiry that the First Amendment prohibits; recognition of

such an exception would undermine the general rule that

religious controversies are not the proper subject of civil

court inquiry, and that a civil court must accept the

ecclesiastical decisions of church tribunals as it finds

them. [426 U.S. at 713-14]

Milivojevich teaches that church court decisions must be

followed by civil courts except perhaps in cases of fraud or

8

collusion, neither of which is involved here. There is no room

for civil court rejection of the church court decision on the

ground of laches or failure to follow proper procedure. That is

just the vice that was condemned in Milivojevich. The substitu-

tion of the Alabama Supreme Court’s ideas of proper remedies

and procedures for that of the highest church court is

constitutionally impermissible.

The constitutional evils that attend upon any “‘‘avrbi-

trariness’’ exception in the sense applied by the Illinois

Supreme Court to justify civil court review of ecclesiasti-

cal decisions of final church tribunals are manifest in the

instant case. [426 U.S. at 716]

The path trod by the Alabama Supreme Court is constitu-

tionally impermissible in view of Milivojevich and it is a matter

of substance involving important First and Fourteenth

Amendment interpretation.

II. The Decision of Jones v. Wolf,

U.S. , 99S. Ct. 3020, Has Been Incorrectly

Interpreted as Modifying the Firmly Established Rules of

Watson v. Jones and Milivojevich so as to Permit State Courts

Under the Guise of ‘‘Neutral Principles’’ to Disregard Any

Church Court Decision Whenever Property Rights May be

Affected, Thus in Effect Changing the Polity of Hierarchical

Churches to That of Congregational Churches.

The Supreme Court of Alabama apparently felt that its

decision was justified in the light of Jones v. Wolf. See footnote

3 in the Majority Opinion and the Concurring Opinion of

Justice Maddox and Chief Justice Torbert.

In refusing to be bound by the decision of the church court,

the Alabama Supreme Court said ‘‘The Trial Court gave too

broad an interpretation to the Watson case.”’ The Supreme

Court of Alabama completely ignores Serbian v. Milivojevich

despite the fact that such decision was cited four times in

plaintiffs’ brief in the Supreme Court of Alabama and despite

the fact that it was relied upon by the trial judge. In the case of

Jones v. Woif, on remand from this Court, the Supreme Court

of Georgia under the guise of ‘‘neutral principles’’ has indi-

9

cated its willingness to impose a congregational form of gov-

ernment on an hierarchical church by refusing to follow the

decisions of the church court on matters of internal organiza-

tion and government. See Opinion filed September 27, 1979

(App. E p. 43a), not yet reported.!

The Georgia Court on remand held:

Accepting the dictates of a church court that decided

which faction had the right of use and enjoyment of church

property, based upon church court resolution of matters of

religious doctrine or faith, was perceived by this court as

being contrary to the spirit of controlling law. Maryland

and Virginia Eldership of the Church of God v. Church of

God at Sharpsburg, 396 U.S. 367, 367 (90 S.Ct. 499, 24

L.Ed.2d 582) (1970); Jones v. Wolf, supra. Now clearly

given the choice to opt for either rule, this court chooses to

adopt the rebuttable presumption of majority rule.

(App. E p. 44a)

Such a decision which apparently the Georgia Court felt was

authorized by the decision of this Court in Jones v. Wolf gives

the Georgia Court the right to change a church form of govern-

ment hierarchical in nature to one congregational in nature and

would seem to be violative of the establishment clause of the

First Amendment.

On the other hand the Florida Supreme Court has reached

a contrary result in Mills v. Baldwin, a similar case decided

after Jones v. Wolf and upon remand from this Court. (see

App. F p. 46a, decision on remand not yet reported.)

It is of the utmost importance that First Amendment rights

guaranteed under the Constitution be uniformly applied

throughout the nation. A definitive decision from this Court is

apparently required.

'We are advised by Counsel for the Petitioners in Jones v. Wolf that another

Petition for a Writ of Certiorari in that case will be filed in the United States Supreme

Court on or about December 26, 1979.

10

III. In Adopting its Book of Church Order with Re-

gards to Property, PCUS Relied upon the WATSON Rule of

One Hundred Years Standing as it Applied to Hierarchical

Churches.

Itis peculiarly appropriate that PCUS should rely upon the

rule in Watson v. Jones, since it was a Presbyterian church that

was involved in that case. Relying upon the Watson rule,

PCUS has never required that church property be in the name

of the denomination or that there be trust provisions in the

deeds for church property. The relationship between the local

church and the denomination as to property was spelled out in

the Position Statement of the General Assembly of the Presby-

terian Church in the United States on Property in 1971 which

Statement was before both the trial court and the Supreme

Court of Alabama and is found in Appendix D to this Petition

at page 40a. This position with regards to property has re-

sulted in ease of handling real estate transactions by local

churches, has facilitated transfers of local church property, has

cut red tape with regards to the execution of mortgages and has

caused no real difficulty until those seeking to create a schism

in the denomination seized upon the approach that church

constitutions should be examined by the courts to see if the

denomination had any interest in the title to the property of the

local church. Relying upon the Watson rule, the denomination

has never required reversionary clauses in deeds to local

churches in favor of the denomination nor that there be trust

provisions in such deeds. The denomination has never and

does not now ask that the property here involved, be granted to

it. PCUS as a denomination recognizes that the title to the

property is properly in the local church. PCUS, however, as

the basis for its position on church property, has relied upon

the fact that it is a hierarchical church and that the local church

is an integral part of the denomination. The congregation of the

church is that body of persons recognized as members of that

particular church by the respective courts of the church and

PCUS since Watson has always felt and now feels that the

power of the church courts to determine the members of the

congregation makes unnecessary the inclusion in The Book of

Church Order of an express trust in favor of the denomination.

11

In Jones v. Wolf, it is said:

At any time before the dispute erupts, the parties can

ensure, if they so desire, that the faction loyal to the

hierarchical church will retain the church property. They

can modify the deeds or the corporate charter to include a

right of reversion or trust in favor of the general church.

Alternatively, the constitution of the general church can

be made to recite an express trust in favor of the denomi-

nation church. The burden involved in taking such steps

will be minimal. And the civil courts will be bound to give

effect to the result indicated by the parties, provided it is

embodied in some legally cognizable form. [99 S.Ct. at

3027]

With all due respect, this Court was overly sanguine when

it stated the burden involved would be minimal. In 1978 there

were 4,010 local congregations of PCUS. What the Court

suggests would be a monumental task. It is hardly fair to PCUS

to change the rules in the middle of the game and the changing

of such rules necessarily raises ex post facto questions as to

pre-existing property rights. Further, each of the states in

which PCUS has local congregations has property law peculiar

to each such state and trust provisions satisfactory or accepta-

ble in one state very well might be against the public policy of

another state.

The point made here is clearly recognized in the dissenting

opinion in Jones v. Wolf in footnote 2, where it it is said:

The neutral-principles approach creates other dif-

ficulties. It imposes on the organization of churches addi-

tional legal requirements which in some cases might in-

hibit their formation by forcing the organizers to confront

issues that otherwise might never arise. It also could pre-

cipitate church property disputes, for existing churches

may deem it necessary, in light of today’s decision, to

revise their constitutional documents, charters, and deeds

to include a specific statement of church polity in the

language of property and trust law. [99 S.Ct. at 3031]

The prediction contained in the dissent in Jones v. Wolf,

12

‘*Not only questions of state law but also important issues of

federal constitutional law thus are left to the state courts for

their decision, and if they depart from Watson v. Jones, they

will travel a course left totally unchartered by this Court.’* [99

S.Ct. «: 3032], has already come about. Untold confusion and

the complete eradication of hierarchical churches is not be-

yond the reach of decisions such as that of the Supreme Court of

Alabama here or for that matter the decision of the Supreme

Court of Georgia on remand in Jones v. Wolf. Here the Su-

preme Court of Alabama has rejected church court decisions

on a vital matter of church government and procedure and has

_ substituted its own idea of what should have been the decision

of the church courts.

CONCLUSION

We respectfully urge the Court, for all of the reasons set

forth above, to grant a Writ of Certiorari and to reverse the

decision below.

Respectfully Submitted,

J. D. Topp, JR.

Davip A. QUATTLEBAUM III

Post Office Box 2248,

Greenville, South Carolina 29602

and

W.H. ALBRITTON

Post Office Box 880

Andalusia, Alabama 36420

Attorneys for Petitioners

APPENDIX

—

3a

APPENDIX A

OPINION

of

THE SUPREME COURT OF ALABAMA

SPECIAL TERM 1979

Filed August 17, 1979

TRINITY PRESBYTFRIAN CHURCH

Or MONTGOMERY, ALABAMA,

a Corporation, ef al.

77-688

v.

CorRIE H. TANKERSLEY, et al.

Appeal from Montgomery Circuit Court

EMBRY, Justice.

This is an action by appellees/plaintiffs, Corrie H.

Tankersley, et al., a minority of the members of Trinity Presby-

terian Church of Montgomery, Alabama (Trinity Presbyterian

Church), and John Knox Presbytery, against Trinity Presby-

terian Church and a majority of the members of Trinity to

obtain control of the church’s corporate entity and thus obtain

dominion, control, and use of the property owned by that

corporation.

After trial before the court without a jury, a decision by the

General Assembly of the Presbyterian Church in the United

States (PCUS), which declared a resolution adopted by East

Alabama Presbytery (now John Knox Presbytery) to be null

and void, was held by the trial court to be ecclesiastical in

nature and, therefore, to be accepted as determinative as to

who were the proper members of the Trinity Church corpora-

tion having the right to the control, possession, dominion and

use of the church property. Tankersley, et al., were held by the

trial court to be the proper members. We reverse and render.

4a

The determinative issue is whether the decision by the

General Assembly of PCUS, rendered 14 June 1976,' is

ecclesiastical in nature as applied to Trinity Presbyterian

Church and, thus, binding on this court. We find that the

portion of the above mentioned decision, which attempts to

revoke permission to withdraw from PCUS and the Presbytery

of East Alabama, given by the Presbytery of East Alabama to

local churches such as Trinity Presbyterian, after such

churches have acted and relied upon that permission, is not

ecclesiastical in nature, and therefore, not binding on this

court.

This action was filed by the John Knox Presbytery of

PCUS (by members of one of its Administrative Commissions)

and six individual members of Trinity Presbyterian Church

against the officers and trustees of Trinity Presbyterian Church

and certain individuals as representatives of the class of the

majority of members of that church.

The complaint alleged that (1) six members of Trinity

Presbyterian Church have been specially designated by the

John Knox Presbytery as the local congregation of Trinity

Presbyterian Church; (2) Trinity Presbyterian Church was or-

ganized in 1891 as achurch in PCUS and has been continuously

a church in PCUS, subject to the constitutional jurisdiction of

the Presbytery; and (3) the minority members of Trinity, desig-

nated by the PCUS as the true local congregation of Trinity, are

entitled to the sole direction and control of the properties of the

church corporation. The relief sought was an award to

appellees/plaintiffs of dominion, control and possession of the

church properties; an accounting of the church corporation’s

affairs; rent to be paid by appellants/defendants for the use of

church properties; an injunction of appellants’/defendants’

further use of the properties; and the injunction of appellants’/

defendants’ further use of the name of Trinity Presbyterian

Church. Appellants/defendants answered, denying that

'The decision declared the resolution of the Presbytery of East Alabama

allowing local churches to withdraw to be null and void and that any churches

dismissed pursuant to that resolution remained subject to the jurisdiction of

the Presbytery of East Alabama.

Sa

appellees/plaintiffs were entitled to the relief demanded and

raising numerous defenses, including estoppel and laches.

After agreeing to a stipulation of certain facts, issues were

joined and trial ensued. Thereafter, a judgment was entered

granting the relief demanded excepting the requirement that

rents be paid by appellants/defendants for the use of the church

property. This appeal followed.

Trinity Presbyterian Church was organized by the appro-

priate Presbytery of the PCUS on 30 July 1891. The PCUS isa

hierarchical or connectional church with a system of church

government consisting of church courts in ascending order.

The lowest level church court is the Session of the local church.

It is governed by the Presbytery. The Synod is the next highest

court. It governs and reviews actions of the Presbytery. The

highest court of the church is the General Assembly. These

courts comprise the government of PCUS, and are not separate

and independent tribunals. Each of these courts exercises ex-

clusive original jurisdiction over all matters specially belonging

to it; however, the lower courts are subject to the review and

control of the higher courts, in regular graduation as provided

for in the PCUS Book of Church Order.

The Session, the church court or governing body of a local

church in the PCUS, is composed of the minister and ruling

elders of the church; the latter are representatives elected by

the local congregation. Each local church is a member of a

Presbytery and its actions are reviewed by that Presbytery. On

4 November 1973 Trinity Presbyterian Church was a member

of the East Alabama Presbytery in the PCUS which comprised

a geographical area of Southeast Alabama and contained ap-

proximately sixty (60) churches. East Alabama Presbytery

(now John Knox Presbytery) is in turn a member of the Synod

of Alabama which has the same geographical boundaries as the

State of Alabama and contains five Presbyteries. As mentioned

earlier, the highest church court in PCUS is the General As-

sembly and it is the supreme governing body. The General

Assembly is composed of thirteen Presbyteries which com-

prise the geographical area of the thirteen Southern states in

the United States.

6a

The governing instrument of PCUS is the Book of Church

Order. The Fourteenth Printing, 1972, was the version of the

Book of Church Order governing PCUS at the time the Pre-

sbytery of East Alabama adopted Trinity Presbyterian

Church’s resolution to withdraw from the PCUS. The Book of

Church Order provided, and still provides, in chapters thirteen

through nineteen, a system of review of the actions of the lower

courts by the higher courts of PCUS.

On 18 March 1892 Trinity Presbyterian Church was incor-

porated by the members of the church in accordance with the

laws of this state. The name of the corporation at the time of

incorporation was Central Presbyterian Church of Montgom-

ery, Alabama. No reference to PCUS was mentioned in the

instrument of incorporation. Subsequently, the certificate was

properly amended to change the name of the corporation to

Trinity Presbyterian Church of Montgomery, Alabama. In this

amendment the purpose of the corporation was stated as fol-

lows:

‘** * * the purposes of the corporation were the mainte-

nance of a church for the worship and service of God

* #* #K??

Again there was no mention of PCUS. However, from the date

of its organization until the adoption of its resolution to with-

draw, Trinity Presbyterian Church was a member of PCUS.

Title to all property in dispute here was acquired by the

church corporation. There has been no alienation or other

disposition of the real property involved in this action. None of

the property was acquired prior to the church’s incorporation

or after 4 November 1973. All of the deeds conveying the

property in question simply recite the name of the corporation

as grantee without reference to PCUS. The Trinity Presbyte-

rian Church corporation has acquired and mortgaged property

without permission or consent from PCUS. No agency or court

of PCUS above the local church session and congregation has

ever made any financial contribution, donation, or loan to

Trinity Presbyterian Church.

Appellees/plaintiffs stipulated that title and right to domin-

Ta

ion, control and use of the property at issue lies with the church

corporation. They concede that PCUS has no proprietary or

contractual interest in the property involved, except in the case

of dissolution of the corporation as provided in Section 6-3 of

the Book of Church Order. Appellees/plaintiffs contend that

appellants/defendants are no longer members of the corpora-

tion and, therefore, have no right to dominion, use, or control

of the property in dispute.

The parties stipulated that as of November 1973 there was

no express provision in the Book of Church Order prohibiting

the withdrawal of a local church or imposing any penalty or

forfeiture if such a withdrawal occurred. Sometime in 1974, the

Book of Church Order was amended to include a provision to

this effect. Such provision was not in effect on 22 January 1974

when the Presbytery having jurisdiction over Trinity Presbyte-

rian Church ratified that church’s resolution of severance from

PCUS pursuant to the guidelines adopted by that Presbytery.

On 25 September 1973 the Presbytery of East Alabama,

having jurisdiction over Trinity Presbyterian Church, adopted

a resolution which set guidelines for local member churches

and member ministers who wished to withdraw from PCUS.?

In accordance with these guidelines, Trinity Presbyterian

Church held a congregational meeting and voted to adopt the

following’ motion by a vote of 814 for and 112 against:

‘** * * that Trinity Presbyterian Church of Montgomery,

Alabama requests dismissal from the Presbyterian Church

in the United States to the Presbytery of the Evangel of the

Continuing Presbyterian Church (now Presbyterian

Church in America).”’

All the guidelines adopted by the Presbytery of East Alabama

were followed.

The motion adopted by Trinity Church was a request to be

dismissed from PCUS and not a unilateral withdrawal. An

administrative commission of the Presbytery of East Alabama

2Book of Church Order § 16-7(8) gives the power to receive and dismiss

churches to the Presbytery.

8a

subsequently voted unanimously to dismiss Trinity Presbyte-

rian Church, and the Presbytery ratified this dismissal on 22

January 1974. Neither the appellees/plaintiffs nor anyone else

filed a complaint to this action of the Presbytery as allowed by §

117-1 of the Book of Church Order. The Synod did not attempt

to correct the action taken by the Presbytery in its yearly

review of the actions of the Presbyteries under its dominion as

provided for in §§ 114-1 and 114-2 of the Book of Church Order;

furthermore, no injunction or protest of any form was issued to

‘Trinity Presbyterian Church by the Synod or General Assem-

bly in an attempt to stop the withdrawal. However, acomplaint

was duly made by a member of the Presbytery of East Alabama

~ to the Synod in opposition to the action of the Presbytery in

adopting guidelines allowing member local churches to with-

draw. The Synod referred the complaint to the General As-

sembly. Again, no injuction was issued or other attempt made

to suspend the effect of the dismissal resolution.

On 14 June 1976 (approximately two years, nine months

from adoption by the Presbytery of guidelines for withdrawal)

the General Assembly adopted as a final judgment a prelimi-

nary judgment issued by its permanent judicial commission

which decreed:

‘*1) The action of the Presbytery of East Alabama in

adopting the resolution in question is wholly unconstitu-

tional, hence void and no effect:

‘**2) any actions taken thereunder by sessions, con-

gregations, ministers or the administrative commission

are similarly void and of no effect;

‘*3) any ministers purportedly dismissed thereunder

remain within the jurisdiction of the Presbytery of East

Alabama and subject to its constitutional authority until

dismissed in accordance with proper procedures; and

‘*4) any churches purportedly dismissed thereunder

remain within the jurisdiction of the Presbytery of East

Alabama and subject to its constitutional authority.”’

After adoption of this decree or judgment contact was

made with the attorneys for appellants/defendants in an effort

9a

by the appellees/plaintiffs to obtain the property in question

without litigation. Prior to this contact, Trinity Presbyterian

Church had received no communication from PCUS since

Trinity’s withdrawal. After negotiations failed, appellees/

plaintiffs made demand for the surrender of the property, but

appellants/defendants refused to surrender it. Subsequently,

on 9 June 1977, appellees/plaintiffs filed this action. Prior to

filing this action, PCUS officially recognized the six individual

plaintiffs and any other members of Trinity Presbyterian

Church who were loyal to PCUS as the true congregation of

Trinity Presbyterian Church.

I

The primary issue in this case is what effect the civil courts

of this state give to the decision rendered by the General

Assembly of PCUS on 14 June 1976. The lower court found the

decision of the General Assembly was an ecclesiastical one

even though it affected property rights, and consequently held

the case of Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871),

required that such ecclesiastical decision be binding in the

present litigation. That finding was erroneous.

The trial court gave too broad an interpretation to the

Watson case. While Watson clearly stands for the principle

that civil courts cannot resolve disputes concerning spiritual or

ecclesiastical affairs, and decisions of a hierarchical church‘s

judicatories must be followed regarding such matters, it does

not prevent civil courts from resolving disputes concerning

civil or property rights. Abyssinia Missionary Baptist Church

v. Nixon, 340 So. 2d 746 (Ala. 1977); Williams v. Jones, 258

Ala. 59, 61 So. 2d 101 (1952). The U.S. Supreme Court recog-

nized the right of civil courts to decide disputes concerning

church property in Presbyterian Church v. Mary E. B. Hull

Memorial Presbyterian Church, 393 U.S. 440 (1969) and in

Maryland & Virginia Eldership of the Churches of God v.

Church of God at Sharpsburg, Inc., 396 U.S. 367 (1970). Both

Hull and Sharpsburg clearly indicate that civil courts have

authority to decide disputes concerning church properiy; how-

ever, civil courts cannot resolve controversies involving relig-

ious doctrine or practice in deciding such property disputes.

10a

In other words, the courts must decide the property disputes by

looking at so-called ‘neutral principles of law” and not resolve

the underlying controversies over religious doctrine. Hull, 393

U.S. 440 at 449.

In this case, the issues involved clearly dealt with proper-

ty; there was no need to decide any ecclesiastical issues in

order to decide the property issues. The basic question in the

case was: who were the members of the corporation; in other

words, who owned the corporation and thus owned the church

property? This was a legal question because it involved issues

of property rights and the constituency of a legal entity created

by statute. The courts in this state have long recognized the

~ concept that, whenever there is an incorporated church, there

exist two entities. Williams v. Jones, supra; Hundley v. Col-

lins, 131 Ala. 234, 32 So. 575 (1901). Stated otherwise, there is a

spiritual church and a secular legal corporation, each separate

though closely connected. Each entity has a Separate purpose.

Questions involving the spiritual church are ecclesiastical in

nature, and civil courts cannot decide any questrons concern-

ing this entity. In contrast, the secular corporate entity is

formed by the state and performs civil functions, e.g., holding

title to church property, and is in no sense ecclesiastical in its

function: therefore, civil courts can decide questions concern-

ing the corporation.

The trial court committed reversible error by allowing the

General Assembly's decree to be binding in this litigation since

the composition of the church's corporate structure was the

principal issue to be determined. The trial court should have

made its own independent determination of which group was

entitled to dominion and control of the corporation following

the standards set forth in Presbyterian Church v. Mary E. B.

Hull Memorial Presbyterian Church, supra, and Maryland and

Virginia Eldership of the Churches of God v. Church of God at

Sharpsburg, Inc., supra.

We deem it necessary to render this particular case due to

the delicate questions involved in church litigation combined

lla

with the particular facts of the case. Both appellants/

defendants and appellees/plaintiffs ask us to decide whether

Alabama follows the rule that all property held by local

churches, whether incorporated or not, is held in trust for the

denominational church body if that body is a hierarchical

church. Appellants/defendants argue that Code 1975, § 10-4-22

allows a local church to unilaterally withdraw from a church

denomination and retain dominion, control and possession of

that local church's property free of the regulation and control

of any higher church body unless: (1) an implied or express

trust is clearly stated in the deeds or other instruments by

which the corporation derives title to its property; (2) a ma-

jority of the members of the local church vote that the statute

shall not be applicable; or (3) there was control of the property

in a higher church body prior to the passage of the act.

Appellees/plaintiffs, on the other hand, assert that Alabama

has historically adopted the position set forth in Watson v.

Jones, supra, that a local church that is a member of the

denomination holds its property in trust for the higher church,

and the local church cannot withdraw from the higher church

body and maintain dominion and possession of its property if

the highest tribunal of the higher church body decrees such

withdrawal is forbidden. We need not decide that issue in this

case since Trinity Presbyterian Church did not unilaterally

withdraw from the PCUS but withdrew with permission.

Both appellants/defendants and appellees/plaintiffs cite

numerous cases involving the withdrawal of a local church

from a higher church body or organization; however, all of the

cases cited are different from this case in one aspect. All the

cases cited involve churches that either withdrew from a higher

church body unilaterally or after permission to withdraw had

been denied; furthermore, in all the cases the higher church

body had attempted to stop the local church from withdrawing

by either issuing an injunction of its own, or by promptly filing a

civil suit, or by taking some other action. See, e.g., Vogt v.

State, 362 So. 2d | (Fla. 1978); Jones v. Wolf, 241 Ga. 208, 243

S.E. 2d 860 (1978); Carnes v. Smith, 236 Ga. 30, 222 S.E. 2d 322

(1976); Adickes, ll v. Adkins, 264 S. C. 394, 215 S.E. 2d 442

12a

(1975), cert. denied, 423 U.S. 915 (1975); Fairmont Presbyte-

rian Church v. Presbytery of Holston, 531 S.W. 2d 301 (Tenn.

1975); Presbytery of the Covenant v. First Presbyterian

Church of Paris, 552 S.W. 2d 865 (Tex. 1977). Certainly, in

none of the cases cited, or that we have found, had a higher

church organization given the local church permission to with-

draw and then later tried to revoke that permission and gain

control of the church property years after the local church

acted on the permission and affiliated with another denomina-

tion, as was attempted in this case. We think this to be a very

significant distinction.

In this case the six minority members of Trinity Presbyte-

rian Church did not file a complaint with the Synod against the

action of the Presbytery of East Alabama which granted Trinity

Presbyterian Church permission to withdraw as provided for in

the PCUS Book of Church Order, Part V, Chapter 17. Neither

the Synod, the General Assembly, nor any other branch of

government of the PCUS attempted to issue an order or injunc-

tion voiding or staying the permission granted to Trinity Pres-

byterian Church by the Presbytery. It would have been a

simple matter for the Synod or the General Assembly to have

ordered that no local church could withdraw from PCUS pur-

suant to the resolution adopted by the Presbytery of East

Alabama until the General Assembly reached a determination

of the constitutionality of the Presbytery’s adoption of such a

resolution. Nothing along this line was even attempted. Trinity

Presbyterian Church was simply informed that its request had

been accepted, and, consequently, Trinity acted upon that

information, ceased any further communications or affiliation

with PCUS, and joined another denomination. We, therefore,

hold that the failure of the appellees/plaintiffs to follow the

proper remedies provided for by the PCUS Book of Church

Order made the adoption of Trinity Presbyterian Church’s

request for dismissal by the Presbytery of East Alabama final.

Appellees/plaintiffs are now estopped from asserting any pos

sible rights to dominion, possession, and control of the church

corporation, and its property, in the civil courts of this state.

The situation in this case is analagous to the situation

13a

where a party fails to exhaust its administrative remedies; such

failure usually bars relief in the courts. See Fraternal Order of

Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 314

So. 2d 663 (1975); Simpson v. Van Ryzin, 290 Ala. 22, 265 So.

2d 569 (1972). Here, the appellees/plaintiffs did not follow the

remedies provided by the PCUS Book of Church Order. While

the determinations of the judicatories of PCUS would not have

been binding as to preclude the civil courts of this state from

determining property rights in subsequent litigation, it would

have put appellants/defendants on notice that their release

from PCUS was being contested and might not be permissible

under the laws of PCUS. Appellants/defendants would then

have had an opportunity to defend the action of the Presbytery

of East Alabama, in releasing Trinity Presbyterian Church,

before the Synod and the General Assembly. Since appellees/

plaintiffs failed to pursue these remedies at the proper times,

we will not allow them to now try to nullify Trinity’s dismissal

from PCUS.

For the stated reasons, we reverse the final judgment of

the lower court and hold: (1) the appellants/defendants are

entitled to possession, dominion, and control of Trinity Pres-

byterian Church of Montgomery, Alabama, the corporation,

and all property owned by that corporation; (2) the relief

granted to appellees/defendants in the judgment of 14 July 1978

is erroneous and of no effect.*

Reversed and Rendered.

Faulkner, Almon, Shores and Beatty, JJ., concur.

Torbert, C. J. and Maddox, J., concur specially.

Bloodworth and Jones, JJ., recuse themselves.

8This decision was written before the release of Jones v. Wolf,

—_—U.S.——(1979), by the United States Supreme court; however, Jones

appears to support our holding in this case.

l4a

77-688

Trinity Presbyterian Church, et al. v. Tankersley, et al.

MADDOX, Justice (Concurring specially).

I concur in the judgment rendered, because neither the

Constitution of the PCUS nor the charter of Trinity Presbyte-

rian Church contains language requiring that disputed property

be turned over to PCUS. In view of this fact, I believe this case

is controlled by Jones v. Wolf. U.S.___(1979), where the

Supreme Court of the United States, by a narrow vote, mod-

ified the 100-year-old rule of Watson v. Jones, 80 U.S. (13

Wall.) 679 (1871), by holding that a denomination has a claim to

- the property of a local congregation only if the denominational

constitution contains language requiring that disputed property

be turned over to the denomination or if the charter of the local

church contains similar language.

Torbert, C. J., concurs.

15a

APPENDIX B

ORDER DENYING REHEARING

September 14, 1979

TRINITY PRESBYTERIAN CHURCH OF

MONTGOMERY, ALABAMA, A Corporation, ef al.

Appellant

VS.

CorriE H. TANKERSLEY, ef al.

| Appellee

You are hereby notified that the following indicated action

was taken in the above cause by the Supreme Court today:

* * *

Application for rehearing overruled. No opinion written

on rehearing.

J. O. Sentell

Clerk, Supreme Court of Alabama

ORDER ASSESSING COSTS

IN THE SUPREME COURT OF ALABAMA

Special Term 1979

August 17, 1979

Montgomery Circuit Court #CV-77-542

77-688

TRINITY PRESBYTERIAN CHURCH OF

MONTGOMERY, ALABAMA, A Corporation, ef al.

VS.

CorriE H. TANKERSLEY, et al.

16a

ORDER

This cause having been duly argued and submitted, IT IS

CONSIDERED, ORDERED AND ADJUDGED that the

judgment of the circuit court be reversed and annulled, and this

Court, proceeding to render the judgment that the circuit court

should have rendered, ORDERS AND ADJUDGES that the

appellants, who were the defendants in the cause in the circuit

court, are entitled to possession, dominion and control of Trin-

ity Presbyterian Church of Montgomery, Alabama, a corpora-

tion, and all property owned by that corporation.

IT 1S FURTHER ORDERED AND ADJUDGED that the

appellees, Corrie H. Tankersley, Virginia Allen, George S.

Allen, W. R. Nickel, individually and as members of Trinity

Presbyterian Church of Montgomery, Alabama, an incorpo-

rated church under the laws of Alabama and as members of

Trinity Presbyterian Church of Montgomery, Alabama, an or-

ganized church in the Presbyterian Church in the United

States; Vernon Broyles, McCoy Franklin, John Boyer, Neil

Davis, Wilhelmena R. Jones, Tom McCabe and W. H. Albrit-

ton, as the members of the Administrative Commission of John

Knox Presbytery of the Presbyterian Church in the United

States and as such Administrative Commission acting as the

Session of Trinity Presbyterian Church in the United States;

John Knox Presbytery, an incorporated Presbytery of the

Presbyterian Church in the United States, pay the costs of

appeal as provided by the Alabama Rules of Appellate Proce-

dure, for which costs let execution issue.

17a

ORDER OF CIRCUIT COURT

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY,

ALABAMA

CIVIL ACTION

NO. CV 77-542

Corrie H. TANKERSLEY, et al.

Plaintiffs

VS.

TRINITY PRESBYTERIAN CHURCH OF

MONTGOMERY, ALABAMA, A Corporation, and

JOHN M. WarD, et al.

Defendants.

Judgment

This is an action by Plaintiffs against Defendants seeking:

(1) restoration of the dominion, control, possession and use of

the properties of Trinity Presbyterian Church of Montgomery,

Alabama, a corporation, to Trinity Presbyterian Church of

Montgomery, Alabama, as an organized Church of the Presby-

terian Church in the United States and that (2) Trinity Presby-

terian Church, as an organized Church in the Presbyterian

Church of America be enjoined from using the name Trinity

Presbyterian Church.

The Court finds that all persons and parties who could

have a lawful or equitable claim in or to the the property

referred to in the Complaint and the direction and control,

possession, or use of same are before this Court and that their

interest therein, if any, will be finally and conclusively deter-

mined by this Judgment.

The case was tried on stipulations of the parties, documen-

tary evidence and the oral testimony of witnesses before the

Court, without a jury. Following the submission of the evi-

dence in this case and the oral arguments of the respective

18a

attorneys, the Court took the case under advisement to allow

the attorneys to file written briefs with the Court. The Court

has now considered all of the evidence in this case, the excel-

lent briefs filed by the attorneys, and all of the cases cited to the

Court, and based thereon, makes the following findings of fact

and reaches the conclusion hereinafter set out.

Findings of Facts

Based on the evidence submitted by the parties, the Court

finds:

Trinity Presbyterian Church of Montgomery, Alabama, in

which church the individual plaintiffs are members, (formerly

using the name The Central Presbyterian Church), was or-

ganized by the appropriate Presbytery of the Presbyterian

Church in the United States on July 30, 1891, and declared to be

‘‘a church according to the word of God and the faith and order

of The Presbyterian Church in the United States”’.

The Presbyterian Church in the United States is a connec-

tional Church with a system of church government consisting

of church courts in ascending order, commencing with the

Session of the local church, moving to the Presbytery, which is

in turn under a Synod, with the General Assembly as the

highest court of the Church. These courts are not separate and

independent tribunals. They have a mutual relation, and every

act of jurisdiction is the act of the whole Church, performed by

it through the appropriate Church court. Although each of

these church courts exercise exclusive original jurisdiction

over all matters specially belonging to it, the lower courts are

subject to the review and control of the higher courts, in regular

gradation. The General Assembly is the highest Court of the

Church. At the time of his ordination each member of the

Session of a local church is required by the Constitution of the

church in his ordination vow to affirm that he approves the

government and discipline of the Presbyterian Church in the

United States and promises subjection to this brethren in the

Lord. Each member of a local church is required to enter into a

solemn covenant that such member will submit himself or

herself to the government and discipline of the Church.

a

19a

On March 18, 1892, Trinity Presbyterian Church of

Montgomery, Alabama (then known as The Central Presbyte-

rian Church) was incorporated by the members of said church.

The Certificate of Incorporation recites: that ‘‘(the) members

of the Central Presbyterian Church of Montgomery, Alabama,

organized on the 30th day of July, 1891. . . did, on the 16th day

of March, 1892, meet together and transact business’’; agreed

that the name of the corporation would be Central Presbyterian

Church of Montgomery, Alabama; elected trustees for the

corporation, who filed the Certificate of Incorporation ‘‘as

provided by Section 1695 of the Code of Alabama of 1886, ‘‘so

that said church may thereby become duly incorporated with

the powers conferred by law’’, under the corporate name

selected. The Certificate was amended June 5, 1913 to change

the name of the corporation to Trinity Presbyterian Church of

Montgomery, Alabama. The amendment changing the name of

the corporation recited that three-fourths of the members of the

Central Presbyterian Church of Montgomery, Alabama, a cor-

poration organized on March 18, 1892, desired to change the

name of the corporation to Trinity Presbyterian Church of

Montgomery, Alabama; that while it was not necessary under

the law to state the purposes of the corporation ‘‘the purposes

of the corporation were the maintenance of a church for the

worship and service of God’’ and that it was not desired to

make any change in the purposes of the corporation. There was

no reference to The Presbyterian Church in the United States

in the Certificate of Incorporation, or the Amendment.

From the date of its organization in 1891, Trinity Presbyte-

rian Church of Montgomery, Alabama was a member and an

integral part of the church denomination known as The Presby-

terian Church in the United States, subject to its form of

government as set forth in its Book of Church Order. Under

this Book of Church Order —

‘“If a particular church is incorporated, the provisions of

its charter and bylaws must always be in accord with the

Constitution of the Presbyterian Church in the United

States. If the congregation is an incorporated body, all

communing members on the active roll of that church shall

20a

be members of the corporation. The officers of the corpo-

ration, whether they be given the title trustee, or some

other title, shall be elected from among the members of the

corporation in a regularly constituted congregational

meeting. Powers and duties of such officers must not

infringe upon the powers and duties of the Session or of the

Board of Deacons.’’ (BCO 6-2)

Title to all the property in question, real and personal, was

acquired by and is still vested in this church corporation. There

has been no alienation or other disposition of the real property

involved in this action. None of the real property in question

was acquired prior to the organization of Trinity Presbyterian

Church of Montgomery, Alabama as a church of the Presbyte-

rian Church in the United States, or after November 4, 1973.

All of the deeds to the property simply recite the corporate

name as Grantee, without reference to its relationship to the

Presbyterian Church in the United States. Trinity Presbyterian

Church of Montgomery, Alabama, acting through its corpora-

tion, acquired property, executed mortgages and generally

exercised dominion, control, ownership and power of disposi-

tion over its properties without the permission or consent of

any higher church court. No agency or court of the Presbyte-

rian Church in the United States above the Session and congre-

gation level ever made any financial contribution or donation

or loan to this local church for the acquisition or maintenance

of any of the property involved in this suit. No question is

presented in this action relating to the management, control

and disposition of the real property of the corporation by any

higher church body, denomination, or organization. Plaintiffs

concede that neither the Presbytery nor any higher court of the

Presbyterian Church in the United States has any proprietary

or contractual interest in the property involved in this action,

except as may be provided in Section 6-3 of the Book of Church

Order in the event the church is dissolved or ceases to exist.

Trinity Presbyterian Church of Montgomery, Alabama as a

church of the Presbyterian Church in the United States has not

been dissolved and it has not ceased to exist. It is recognized by

the appropriate Presbytery as a church of the Presbyterian

Church in the United States. The individual plaintiffs in this

ee eee

2la

case were on the active roll of communicant members of that

church on and prior to November 4, 1973. They are still active

communicant members of that church.

On September 25, 1973, the Presbytery having jurisdiction

over Trinity Presbyterian Church of Montgomery, Alabama

adopted a resolution purporting to set guidelines for local

member churches and member ministers who wished to with-

draw from the Presbyterian Church in the United States. In

accordance with these guidelines a meeting of the congregation

of Trinity Presbyterian Church of Montgomery, Alabama was

held on November 4, 1973, at which a vote was taken on the

motion —

‘‘that Trinity Presbyterian Church of Montgomery,

Alabama request dismissal from the Presbyterian Church

inthe United States to the Presbytery of the Evangel of the

Continuing Presbyterian Chruch’’ (now Presbyterian

Church in America).

814 members voted for and 112 members voted against the

motion. At the time of the meeting, there were over 1700

enrolled communicant members of the church.

Following this request by the church seeking dismissal

from the Presbyterian Church in the United States, an adminis-

trative commission of the Presbytery having jurisdiction over

this church voted unanimously on November 8, 1973, to dis-

miss Trinity Presbyterian Church of Montgomery, Alabama,

from the Presbyterian Church in the United States, which said

action was ratified by the Presbytery on January 22, 1974. No

complaint was filed as to this Presbytery action and the same

stands uncontested.

However, a complaint was duly made by a member of the

Presbytery to the Synod of the Mid-South against the action of

the Presbytery on September 25, 1973, in adopting the resolu-

tion under which the congregational action of November 4,

1973, was taken. The Synod duly referred the complaint to the

General Assembly for final determination. On June 14, 1976,

the General Assembly of the Presbyterian Church in the United-

States, which is the highest court of that denomination,

<

22a

adopted as a final judgment the preliminary judgment of its

permanent Judicial Commission and determined that:

(a) the action of the Presbytery in adopting the resolution

In question is wholly unconstitutional, hence void and of

no effect;

(b) Any actions taken thereunder by Sessions, congrega-

tions, ministers, or the Administrative Commission are

similarly void and of no effect;

(c) any ministers purportedly dismissed thereunder re-

main within the jurisdiction of the Presbytery and subject

to its constitutional authority until dismissed in accord-

ance with proper procedures; and

(d) any churches purportedly dismissed thereunder re-

main within the jurisdiction of the Presbytery and subject

to its constitutional authority.

This decision of the General Assembly, which is the highest

court of the denomination is not infected with any fraud,

collusion, or arbitrariness.

Promptly after this decision of the General Assembly,

contact was made with one of the attorneys for defendants in an

effort to work out some arrangement for concluding the matter

without litigation. Nothing was accomplished along these

lines. A demand was made for surrender of management, con-

trol, possession and use of the property to Trinity Presbyterian

Church of Montgomery, Alabama as a church of the presbyte-

rian Church in the United States. Restoration was refused.

Negotiations relating to disposition of the matter continued

until June 9, 1977. Promptly thereafter the complaint in this

cause was filed by the plaintiffs. The evidence is not sufficient

to sustain the defense of estoppel or laches.

Defendants as members, officers and agents, of a church

of the Presbyterian Church in America, known as Trinity

Church, with the aid and consent of the Trustees of the corpo-

ration, have had the active use, possession, and control of the

property of the corporation, since November 4, 1973. There is

no connection between that church and Trinity Presbyterian

Sn, Detainees ee

23a

Church of Montgomery, Alabama as a church of the Presbyte-

rian Church in the United States.

The individual plaintiffs and those who remain in Trinity

Presbyterian Church of Montgomery, Alabama as a church of

the Presbyterian Church in the United States have been recog-

nized by that denomination as the congregation of that church.

The question presented relates to the right of the local

church which organized the corporation and whose members

constitute the members of the corporation under the provisions

of the Alabama Statute, the decisions of the Supreme Court of

Alabama (Hundley v. Collins, et al, 131 Ala. 234; Blount, et al

v. Sixteenth St. Baptist Church, 206 Ala. 423) and Section 6-2

of the Book of Church Order of the Presbyterian Church in the

United States, to the possession, use and control of the prop-

erty of the corporation as against a dissident group of former

members who are now affiliated with the Presbyterian Church

in America, which is a separate and distinct denomination. The

right of the local church to manage, control and dispose of its

own property or to have the control and direction of its own

corporation, is not in dispute here.

It is the opinion and finding of the Court that the plaintiffs

are entitled to the relief sought.

Opinion

In the Presbyterian Church in the United States only the

Presbytery has the power and authority to organize, dissolve,

or dismiss churches. The action of Trinity Church of

Montgomery, Alabama seeking to be dismissed from that de-

nomination has been declared null and void by the highest

court of the denomination. In its decision the General Assem-

bly said that any church purportedly dismissed under the reso-

lution and proceedings of Presbytery adopted September 25,

1973, was still a church within the jurisdiction of the appropri-

ate Presbytery of the Presbyterian Church in the United States

and subject to its constitutional authority. That decision is an

ecclesiastical decision and, although it affects civil rights in

property, must be accepted in litigation before this Court as

24a

conclusive, under the authority of Watson v. Jones, 80 U.S. (13

Wall.) 679. The Watson Rule is clearly stated in Watson itself

and applies here. The Supreme Court of the United States said in

that case:

‘In the case of property acquired in any of the usual modes

for the general use of a religious congregation which is itself

part of a large and general organization of some religious

denomination, with which it is more or less intimately con-

nected by religious views and ecclesiastical government

. .and which appeals to the court to determine the right to

the use of the property so acquired . . . for the use of a

religious congregation, and so long as any existing religious

congregation can be ascertained to be that congregation, or

its regular and legitimate successor, it is entitled to the use

of the property. In the case of an independent congregation

we have pointed out how this identity, or succession, is to

be ascertained (by majority vote of the congregation), but in

cases of this character (Presbyterian) we are bound to look

at the fact that the local congregation is itself but a member

of a much larger more important religious organization

bound by its orders and judgments. There are in the Pres-

byterian system of ecclesiastical government, in regular

succession, the Presbytery over the Session or local

church, the Synod over the Presbytery and the General

Assembly over all. These are called in the language of the

church organs ‘judicatories’ and they entertain appeals

from the decisions of those below and prescribe corrective

measures in other cases. In this class of cases, we think the

rule of action which should govern the civil courts, founded

in a broad and sound view of the relations of church and

state under our system of law, and supported by the pre-

ponderating weight of judicial authority is, that whenever

the question of. . . ecclesiastical rule. . . has been decided

by the highest of these church judicatories to which the

matter has been carried, the legal tribunals must accept

such decisions as final and as bonding on them in their

application to the case before them.’’ (bracketed matter

supplies)

ee ete (A Aten tn nce

25a

The individual plaintiffs and those who remain in Trinity Pres-

byterian Church of Montgomery, Alabama have been recog-

nized by that denomination as the congregation of that church.

The principle of Watson was followed in Gonzalez v.

Roman Catholic Archbishop, etc., 280 U.S. 1, 50 S.Ct. 5 where

the Supreme Court of the United States said: (1929)

‘*In the absence of fraud, collusion, or arbitrariness, the

decisions of the proper church tribunals on matters purely

ecclesiastical, although affecting civil rights, are accepted

in litigation before the secular court as conclusive, because

the parties in interest made them so by contract or other-

wise.”

Again, in Kedroff v. St. Nicholas Cathedral, etc. 344 U.S. 94,

73 S.Ct. 143, that Court reaffirmed Watson, saying: (1952)

‘‘Ours is a government which by the ‘law of its being’

allows no statute, state or national, that prohibits the free

exercise of religion. There are occasions when Civil

Courts must draw lines between the responsibilities of

Church and State for the disposition or use of property.

Even in those cases when the property right follows as an

incident from the decision of the church custom or law on

ecclesiastical issues, the church rule controls. This under

our constitution necessarily follows in order that there

may be free exercise of religion.’’

Kedroff was accepted as controlling by the Supreme Court of

Alabama in First Methodist Church of Union Springs v. Scott,

284 Ala. 571; 226 So. 2d 632. (1969)

In Presbyterian Church in the United States v. Mary

Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S.

440, 89 C. Ct. 601, (1969) the Supreme Court of the United

States stated that —

‘‘In Kedroff v. St. Nicholas Cathedral : . . the Court

converted the principle of Watson as qualified by Gon-

zalez into a constitutional rule.”

26a

This principle has been reaffirmed by the Supreme Court of the

United States in Serbian Eastern Orthodox, etc. v.

Milivojevich, 426 U.S. 696, % S. Ct. 2372. (1976)

The Watson Rule of deference to Church authority in

ecclesiastical matters has long since been adopted by the Su-

preme Court of Alabama, Hudley v. Collins, 131 Ala. 234, 32

So. 575 (1902); Harris v. Cosby, 173 Ala. 81, 55 So. 231 (1911);

Morgan v. Gabard, 176 Ala. 568, 58 So. 902 (1912); Williams v.

Jones, 258 Ala. 59 and reaffirmed by the Supreme Court of

Alabama in Putman v. Vath, 340 So. 2d 26 (Ala. Dec. 3, 1976).

Recognition and identification of churches and their congrega-

tions are purely ecclesiastical matters.

In Harris v. Cosby, the Supreme Court of Alabama recog-

nized the Presbyterian family of churches as belonging to the

third class of churches referred to in Watson, that is, ‘“‘where

the religious congregation or ecclesiastical body holding the

property is but a subordinate member of some general church

organization, in which there are superior ecclesiastical tribun-

als with a general and ultimate power of control more or less

complete, in some supreme judiciary over the whole member-

ship of the general organization’’. And, as also stated in the

Watson Rule which has been consistently followed by the

Supreme Court of Alabama, *‘all who unite themselves to such

a body do so with an implied consent to this government, and

are bound to submit to it’’.

The defendants in this case strongly urge that this Court

adopt the neutral principles of law doctrine which was first

enunciated in the Hull case. However, even under this doc-

trine, the title to the property involved in this case is where it

has always been since it was acquired, viz.: in the corporation

organized by members of Trinity Presbyterian Church of

Montgomery, Alabama as a church of the Presbyterian Church

in the United States. A church of the Presbyterian Church in

America is not lawfully related to this corporation in any way.

The corporation holds the property for the use and benefit of

the members of the corporation. The members of the corpora-

tion, under Section 1695, Code of Alabama 1876 (now Sec.

10-4-20, Alabama Code, 1975) and Section 6-2 of the Constitu-

ce Oe ee

a a tin Ne al al aN aw

27a

tion of the Presbyterian Church in the United States, are the

members of Trinity Presbyterian Church of Montgomery,

Alabama as an organized church of the Presbyterian Church in

the United States, Hundley. Collins, etal, 131 Ala. 234; 32 So.

575; Blount, etalv. Sixteenth St. Baptist Church, 206 Ala. 423,

90 So. 602, since the corporation was organized by this church,

it is still the church recognized by the respective courts of the

Presbyterian Church in the United States and it remains within

the governing structure of that connectional denomination as

that structure existed prior to the division. That church has not

been dismissed. It has not been dissolved. It has not ceased to

exist. There is no evidence that title and right to use and control

the property of the corporation has lawfully passed from that

church to the Defendants who are officers and members of a

church of another denomination.

The Presbyterian Church in the United States of America

is not a church of ‘‘mixed polity’’ in its ecclesiastical dimen-

sion. Church identity is an ecclesiastical matter. It may be

‘*congregational as to property’’, but Presbytery of the Coven-

ant v. First Presbyterian Church of Paris, 552 SW2d 865,

(Texas Civ. App. 1977) is instructive at this point:

‘* ‘By congregational as to property’ it is meant that the

local church owns its property and is free to dispose of it as

it wishes. But we are at once met with the fact that the

loyal faction, not defendants, constitute the local church.

The property was conveyed to the First Presbyterian

Church of Paris, U.S., or to the corporation holding title in

trust for it and the PCUS judicatories have recognized the

loyal faction as that church. The right of that church to

control its own property is not in dispute here.”’

In a clear echo of the Watson case, the Supreme Court of

South Carolina in Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d

442, cert. denied, 423 U.S. 913 (1975) states the situtation

before the court in the case at bar, which may be paraphrased

as follows: .

The defendants voluntarily associated themselves with

Trinity Presbyterian Church of Montgomery, Alabama

28a

and became subject to the discipline and government of

the Presbyterian Church in the United States. They volun-

tarily severed their connection and when they did they

forfeited any right to the use and possession of the prop-

erty of that church. By joining the Trinity Presbyterian

Church of Montgomery, Alabama the members did not

acquire such an interest in the property that they are

entitled to take with them upon seceding. The property

belonged to Trinity Presbyterian Church of Montgomery,

Alabama through its corporation before the members

joined the church and it belongs to the same after they

have withdrawn. The Defendants simply are not now a

part of that church.

This is a clear application of the Watson Rule where the Court

said:

‘‘The appellants in the case presented to us have sepa-

rated themselves wholly from the church organization to

which they belonged when this controversy commenced.

They now deny its authority, denounce its action and

refuse to abide by its judgments. They have first erected

themselves into a new organization and have since joined

themselves to another totally different, if not hostile, to

the one to which they belonged when the difficulty first

began. Under any of the decisions which we have

examined, the appellants, in their present position have no

right to the property, or to the use of it, whichis the subject

of this suit.”’

For other cases of similar import, see St. Johns Presbytery v.

Central Presbyterian Church, 102 So. 2d 714 (Fla. 1958);

Froelich v. Rowley, 102 So.2d 720 (Fla. 1958); Presbytery of the

Everglades v. Morgan 125 So.2d 762, (Fla. App. 1961); Pres-

bytery of Cimarron v. Westminster Presbyterian Church, 515

P.2d 211, (Okla. 1973); Presbytery of Seattle, Inc. v.

Rohrbaugh, 489 P.2d 615, cert. denied, 405 U.S. 996, (Wash.

1971). The facts in the present case before this Court do not

allow application of Maryland and Virginia Eldership of

Churches of God v. Church of God At Sharpsburg, Inc., 396

U.S. 367, 90 S.Ct. 499 (1970) or, Jones, et al v. Wolf, (Supreme

29a

Court of Georgia — in manuscript); or the majority opinion of

the Florida Court of Appeals in Baldwin v. Mills, 344 So. 2d

259.

Section 10-4-22, Alabama Code 1975, in the opinion of this

Court is not applicable in this case and there is, therefore, no

need to consider its constitutional validity. However, it should

be noted here that Kedroff v. St. Nicholas, 344 U.S. 94, 73

S.Ct. 143, requires State statutes relating to church property to

‘‘leave control of ecclesiastical polity . . . to the church gov-

erning bodies.”’

Lastly, the Defendants ask that this Court consider the

equitable approach in light of the overwhelming vote of the

membership of the Church on November 4, 1973, to request

dismissal from the Presbyterian Church in the United States.

However, this Court is bound by the law as set forth over the

years by the Supreme Court of Alabama as this Court under-

stands the law to be. To change or modify the decisions of our

Supreme Court lies within the power of that Court and not of

this trial Court. The duty of this trial Court is to determine the

facts in an honest and impartial manner and to apply the law as

it understands the law to be to the best of its ability.

In conclusion, the Court is of the opinion that Trinity

Presbyterian Church of Montgomery, Alabama was and is an

integral part of the Presbyterian Church in the United States,

which is a connectional church. Plaintiffs are members of that

local church and are identified with that church and its corpora-

tion. That church organized, directed and controlled the corpo-

ration which holds the property involved in this case, until

November 4, 1973, at which time defendants assumed control,

use and occupancy of the properties of the corporation. Defen-

dants are not related to or lawfully identified with that church,

or its corporation. They have renounced any connection with

or allegiance to that church by their affiliation with a totally

different denomination. This they have a right to do, as indi-

viduals, but such right does not allow them to possess, use and

control the property of that church and its corporation. That

church has not been dissolved or dismissed, nor has it ceased to

exist. There has been no transfer or alienation of the corporate

30a

property. Under all of the applicable decisions of the Supreme

Court of Alabama, the First and Fourteenth Amendments to

the Constitution of the United States of America, the principle

of the Watson cases and the Constitution of the Presbyterian

Church in the United States, Trinity Presbyterian Church of

Montgomery, Alabama, as a church of the Presbyterian

Church in the United States, its officers, agents and members,

are entitled to the exclusive, peaceable, quiet possession, use,

occupancy, direction and control of the property involved in

this suit.

Judgment

It is, therefore, the judgment of the Court:

1. That defendants forthwith restore to Trinity Presbyte-

rian Church of Montgomery, Alabama, as a church of the

Presbyterian Church in the United States, the exclusive, quiet

and peaceful possession, occupancy, use, direction and con-

trol of the real estate described in paragraphs 6, 7 and 8 of the

Complaint and the money and other property of Trinity Presby-

terian Church of Montgomery, Alabama, the corporation, ex-

isting on November 4, 1973.

2. That the Clerk of this Court submit to this Court within

thirty (30) days the name of a Certified Public Accountant with

offices in Montgomery County, Alabama, who has no interest

in this case and is not relatad to any party or attorney in this

case within the fourth degree of affinity or consanguinity, and

who would be willing and capable of serving as a Special

Master to examine the books and records of Trinity Presbyte-

rian Church of Montgomery, Alabama, and state the assets and

liabilities of that church as of November 4, 1973, and report the

same to the Court within ninety (90) days from the date of his

appointment, together with any objections by defendants

thereto as well as any claims for credits by deferidants and the

amount of credits allowed, if any. The Special Master shall

handle the reference under the provisions of Rule 53 of

Alabama Rules of Civil Procedure.

3. That defendants and each of them refrain from interfer-

ing in any manner with the exclusive, quiet and peaceful pos-

af Aan

eee

3la

session, occupancy, use, direction and control of Trinity Pres-

byterian Church of Montgomery, Alabama, as a church of the

Presbyterian Church in the United States.

4. That defendants cease and desist from the use of the

name ‘Trinity Presbyterian Church’’ in the City of

Montgomery, Alabama.

5. That the costs in this cause be taxed against the defen-

dants, for which let execution issue.

6. That the Clerk of this Court mail a copy of this Order,

postage prepaid, to the following:

Hon. J. D. Topp, JR.

LEATHERWOOD, WALKER, TODD & MANN

P. O. Box 2248

Greenville, South Carolina 29602

Hon. V. H. ROBISON

RoBISON, BELSER, BREWER & MANCUSO, P.A.

P. O. Box 1470

Montgomery, AL 36102

Hon. OWEN PAGE

305-307 Realty Building

Savannah, GA 31401

Hon. W. J. WILLIAMSON

P. O. Box 467

Greenville, AL 36037

Hon. W. H. ALBRITTON

ALBRITTON & GIVHAN

109 Opps Avenue

Andalusia, AL 36420

DONE this the 14th day of July, 1978.

G. H. WRIGHT, JR.

Circuit Judge

32a

APPENDIX C

EXCERPT FROM THE MINUTES OF THE GENERAL

ASSEMBLY OF THE PRESBYTERIAN CHURCH

IN THE UNITED STATES. JUNE 14, 1976

pp. 92-99.

REPORT OF THE PERMANENT JUDICIAL COMMISSION

UN CASES OF PROCESS

Mr. Jack G. Admire, Chairperson of the Permanent Judi-

cial Commission, was introduced by the Moderator. Mr. Ad-

mire read the Report of the Commission in the case of Robert

Strong, et al, Complainants, versus the Judicial Commission of

the Synod of the Mid-South, Respondent, as follows:

ROBERT STRONG and G.A. COMPLAINT

W. WOODROW BAGBY No. 1-1976

VS.

JUDICIAL COMMISSION OF

THE SYNOD OF THE MID-SOUTH

Findings of Fact

On September 25, 1973. at a regular meeting, the Presbytery of East

Alabama adopted a resolution establishing an Administrative Commission

with authority to dismiss churches ‘‘from the Presbyterian Church in the

United States to Evangel Presbytery of the Continuing Presbyterian Church

or to any other such Presbytery™’ upon a %ths vote of those present at a duly

called congregational meeting of a church and to make similar dismissals,

upon individual requests, of ministers of the presbytery. The entire resolu-

tion appears as Appendix A to this preliminary judgment. Certain salient

features will be quoted or paraphrased in the main body of this opinion. The

Commission was organized pursuant to the provisions of BCO 19-5, which

prescribes the composition of administrative commissions of presbytery, and

was to have a term lasting until the January 1974 stated meeting of presby-

tery. During this term ‘‘any church in the . . . Presbytery [might] decide by

congregational meeting . . . to request [the Commission] that the presbytery

dismiss it. . . to Evangel Presbytery of the Continuing Presbyterian Church

or to any other such presbytery.’ Ministers of the presbytery might also

‘request dismissal from its membership and consequently from membership

in the Presbyterian Church in the United States to Evangel Presbytery of the

Continuing Presbyterian Church or to any other such Presbytery.”’ The

possibility that churches might request and receive dismissal whose ministers

did not, and vice versa, was dealt with by providing that ministers remaining

eS ee eee eT en

33a

could be authorized by Presbytery to labor outside its bounds, while those

departing would be retained as supply ministers to their erstwhile churches

‘through the transitional period.’’ Meetings of congregations to consider

dismissal were to be called in strict compliance with the Book of Church

Order. After discussion, their vote was to be taken on the ‘‘categorical

question”’ whether dismissal to another specifically identified presbytery

should be requested. Full attendance was to be urged in the notice of meeting

and sessions calling such meetings were adjured in the resolution to ‘‘inform

their congregations of the issues for and against the action.” Ifa congregation

voted by at least a 34ths majority to request dismissal, the resolution provided

that the church ‘‘shall be dismissed with its property (both real and personal)

as requested,”’ and that the ‘* Administrative Commission of Presbytery shall

grant. . . the request according to the vote of the congregation.”’ (emphasis

supplied) Appeal from a congregation's vote (preseumably either way) might

be taken within 10 days, but the appeal was to be limited to consideration

alone of procedural irregularities in calling or conducting the meeting or in

determining the eligibility of persons to vote. On such an appeal ‘both sides

[might] be heard, but the evidence [was to] be limited to the record and to

whether the proper procedures were in fact followed. No evidence of other

matters [was to] be received.’’ The resolution did not specify to what body

(Presbytery, the Commission, or Synod) such a limited appeal might be

taken. The function of the Administrative Commission was strictly limited by

the resolution to optional attendance of its members at congregational meet-

ings ‘as observers,’’ to receiving from the clerks of congregational meetings

certificates of the voting results, to taking action thereon as dictated by the

resolution’s specification of votes required to require dismissal, and (possi-

bly) to hearing appeals.

A complaint against Presbytery’s action in adopting this resolution was

duly made by Reverend L. E. Woodward to the Synod of the Mid-South. This

complaint was referred by Synod to a Judicial Commission of the Synod

which on October 10, 1974, sustained the complaint. To this action of the

Judicial Commission a complaint was duly filed with the Synod of the Mid-

South by Reverends Robert Strong and W. Woodrow Bagby. The Synod duly

referred the complaint to the General Assembly for determination in the first

instance as provided by BCO 115-3. The case is before the Permanent Judicial

Commission for its preliminary judgment and report to the General Assembly

in accordance with BCO Chap. 20.

Conclusion and Judgment

It is an essential characteristic of the presbyterian form of church gov-

ernment that specific limited powers are constitutionally allocated for exer-

cise in the first instance by different ones of its representative assemblies (or

courts), arranged in a ‘‘regular order of gradation.’* BCO 13-1, 14-5. Each

court exercises exclusive original jurisdiction as to such matters, subject —

except in the case of the highest court, the General Assembly — to review and

correction by higher courts on matters both procedural and substantive. BCO

34a

14-5, 14-6. This indeed is the gist of the connectional form of church structure

and government which stands it in sharp contrast to the congregational form

of church structure and government where all jurisdiction is original and

exclusive with each separate congregation, there being no review. In this

denomination the different courts in their regular order of gradation ‘‘are not

separate and independent tribunals”’ but ‘‘have a mutual relation’’ which is

designed to “express the unity of the church.** This mutual relation is exactly

ordered by the specific constitutional allocations of original and appellate

jurisdiction. F.G. Pref. 111, BCO 13-1, 14-5, 14-6. It is critical to the mainte-

nance of this form that the various courts exercise the specific jurisdiction

conferred upon them, neither usurping that not given them nor declining to

exercise that given, whether by default or by attempted delegation. This

connectional form of government is imbedded in our Constitution and can

only be altered, generally or specifically, by formal amendment of that

Constitution. BCO 30-1. Clearly none of the constituent courts (not even the

General Assembly) acting alone or in concert can constitutionally alter the

structure by means other than the formal amending process. Within this

constitutional system exclusive original jurisdiction to dismiss churches,

BCO 16-7(8), and to dismiss ministers, BCO 16-7(13), is vested in presbytery.

Neither appears among the enumerated matters over which sessions (or

congregations) possess exclusive original jurisdiction, BCO 15-6.

Consonant with these principles we conclude that the action of the

Presbytery of East Alabama in question here was an unconstitutional attempt

to abdicate the powers possessed exclusively by it to dismiss churches and

ministers within its jurisdiction. in the case of churches, this included an

effort to delegate the power to individual sessions and congregations. While

the resolution ostensibly delegated this power to an administrative commis-

sion of presbytery, it is manifest upon inspection of the prescribed procedure

that the true power of decision on the matter was sought to be given over

directly to sessions and congregations. Under its design the administrative

commission acted as nothing more than a loose supervisor of the congrega-

tional voting process, having only the function of observing the voting proce-

dure (if any of the commission members so desired), of receiving reports of

the voting results, and of acting upon those reported results in accordance

with a predetermined mandate, having no power of substantive review. By

this means presbytery sought utterly to abdicate any power to exercise

independent judgment about the substantive propriety of dismissing

churches within its charge, and to deprive its commission of any power to

exercise such independent judgment. The unmistakable intent of this pres-

byterial action was to permit unilateral congregational withdrawals under the

pro forma imprimatur of ‘‘dismissals*’ by an administrative commission of

presbytery and to cut off the power of substantive review of such actions by

higher church courts. This is patently at odds with the clear constitutional

arrangement wherein the power to make that decision in the first instance is

cast upon presbytery acting as a reasoning, evaluative body, with the power

then to review presbytery action, both procedurally and substantively, re-

posed in higher courts of the denomination.

te at BO Ail Cannel estes ig» rte anata 0

— A EE 6 Rete

ed

35a

Complainants argue that the procedural ‘‘guidelines."’ provided in the

resolution adequately protected the rights of the only persons to whom they

would apparently concede any standing to assert them: the defeated minority

of a congregation voting to request dismissal. They point to the substantial

plurality — 75% — required to effect dismissals, and to the scrupulous

attention to matters of notice and opportunity: for discussion prior to vote

which appear in the ‘*guidelines,”* Even if it be conceded that in the forum

provided them the formal elements of due process were effectively accorded

congregational members — a matter not free of doubt under the circum-

stances — these arguments simply miss the point. By giving to presbytery

rather than to session or congregation the power to dismiss a church the

constitution of this denomination guarantees a formal meeting of presbytery

as the forum in which loyalist minorities of whatever size might press their

claims that they were sufficient in numbers and dedication to continue a

church in its connectional relationship within this denomination. Further-

more, the assumption that only loyalist minorities of directly affected con-

gregations have interests requiring protection in this context is also wide of

the mark. Implicit in the fact that this power to dismiss is given originally to

presbytery rather than to session or congregation is a recognition of the vital

interest which presbytery itself — and through presbytery the entire connec-

tional Church — has in the dismissal of any one of its churches. The interests

of that wider constituency of members of the church at large is simply

unrecognized by such arguments. In sum, no amount of procedural due

process accorded to congregational members alone and no congregational

voting plurality could save against constitutional infirmity any attempt by a

presbytery to shift the forum for original decision on this matter from its own

councils to those of a session or congregation and then to screen that decision

from substantive review by higher courts. Considerably less than twenty-five

percent of the members of a particular congregation present at any congrega-

tional meeting might be quite able as a body to sustain a church as its

congregation. This resolution seeks to deprive them of the right to make that

constitutionally guaranteed claim in the first instance in presbytery, and to

have any adverse decision in that court subjected to substantive review by

higher courts.

The gist of what has been said so far is that this attempt by presbytery to

delegate to individual congregations the power in effect to dismiss them-

selves violates the church constitution. Judgment could well be rested on that

ground alone. If this were done, however, two questions might remain which

should appropriately be addressed in this opinion. The first is whether by any

action a presbytery may constitutionally give to an administrative commis-

sion its decision-making power in respect of the dismissal of churches. The

basic ground for decision here is that the particular administrative commis-

sion created by the resolution in question was a mere shell, with no power of

decision; that the actual delegation was therefore to congregations: and that

this was unconstitutional. This leaves the question whether a more appropri-

ate direct delegation of this particular power to an administrative commis-

36a

sion, truly acting as such, see BCO 19-2, 118-2, might pass constitutional

muster. If the answer were no, this would provide an additional ground for

judgment. Suffice it for this case to express strong reservations, without

deciding the point explicitly, whether presbytery by any form of delegation

may give over to an administrative commission the power to dismiss

churches.

This leads to the second question. Assuming that some form of delega-

tion of the dismissal power by presbytery to an administrative commission

might be permissible, to what ecclesiastical bodies might presbytery au-

thorize it to make dismissals? Clearly presbytery could not authorize a

commission to effect dismissals which presbytery itself could not effect.

There are constitutional limits on presbytery’s power here. They were ex-

pressed in 1974 by the General Assembly in the case of Harvard A. Anderson

vs. The Synod of Florida, Minutes of the 114th General Assembly, pp.

119-121 (1974). That case, decided after adoption of the resolution in ques-

tion, held that a presbytery could not constitutionally dismiss its churches to

‘*independency’’ nor to any specified body except another presbytery of this

denomination or of ecclesiastical bodies with which union with this denomi-

nation is permitted by the Book of Church Order. These latter include, in

addition to certain specifically identified denominations, BCO 31-1, any

other ecclesiastical body **whose organization is conformed to the doctrines

and order of this Church.’* BCO 18-6 (13),(17). This case remains the law of

the Church, and it would clearly prohibit the delegation by presbytery (even

were delegation generally permissible) of carte blanche power to an adminis-

trative commission to dismiss to ecclesiastical bodies not falling within the

stated category. Whether another ecclesiastical body does fall within the

general classification mentioned is itself a matter of judgment which must be

determined by the dismissing authority as a precondition to dismissal. No

such determination was formally made by the Presbytery of East Alabama in

this case, nor did it require either its administrative commission or the

sessions or congregations of its churches to make any such determination. In

this broader respect also, the action of the presbytery is in violation of the law

of the denomination as declared in the Anderson case.

Another closely related constitutional infirmity in the resolution should

be noted here. It would effectively undercut the most important real option

open to presbytery when through the ravages of dissidence and schism the

loyalist element in any of its churches no longer has the strength to sustain the

church as its congregation: that of dissolving the church under BCO 16-7 (9),

with the consequences for loyalist members and for ownership of church

property provided in BCO 8-18 and 6-3 respectively. As pointed out in the

Anderson case, this is the only live option from a practical and legal

standpoint open to presbytery in these circumstances, since it may not

constitutionally simply surrender the church to a dissident majority by dis-

missing it to “independency” or to any but a limited set of other ecclesiastical

bodies within or closely associated with this denomination. Under the resolu-

tion in question there is no provision for acting upon or even considering this

AOS ANE AE Se hn, | Se ata.

37a

constitutionally grounded option once a congregational meeting to consider

**dismissal’’ has been set in motion. This power and responsibility of pres-

bytery may not constitutionally be circumvented in the way here attempted.

To this point this opinion has dealt only with the specific question of the

presbytery’s constitutional authority to delegate, as here attempted, its

power to dismiss churches. There is also the question of its power to delegate

— in the way here attempted — its exclusive power to dismiss ministers. This

is theoretically a separate question and one concededly not fraught with as

serious constitutional difficulties as those attending the dismissal of

churches. It involves only a single person and not an entire congregation. The

resolution in question does not attempt, as it does in the case of the churches

themselves, to delegate the question of a minister’s dismissal to congrega-

tional vote. Clearly, as a practical matter, a minister may not in the final

analysis be held against his will in a formal relationship with presbytery.

Nevertheless, there are constitutional procedures for dissolution of pastoral

relationships with churches and consequent dismissals of ministers by pres-

bytery, BCO 28-1, 28-2, which are clearly not those suggested by this resolu-

tion. Actually the procedure contemplated for dismissal of ministers is not at

all plain from the resolution. This may well reflect the secondary importance

which it had in the totality of interests obviously leading to adoption of the

resolution. Since there existed the possibility that individual congregations

and their ministers might split on the desire for dismissal, that eventuality had

to be dealt with by the authors of the resolution, and it is to this point that the

resolution essentially addresses itself so far as ministers are concerned.

Nevertheless, despite the theoretical separability of the two questions and

the less serious the question affecting dismissal of ministers, we conclude

that under the circumstances of this particular case the two matters are

inseparably linked, and that in addition to the irregularity with respect to the

procedure for dismissing ministers the constitutional infirmity with respect to

the dismissal of churches necessarily extends to the whole design. If the

procedure for dismissing churches fails constitutionally, there remains no

reason in the plan for dealing with the possibility of divergent interests

between minister and congregation about their separate ‘‘dismissals’’ from

presbytery.

4 necessary implication of the legal conclusions so far stated is that any

‘‘dismissals’’ of either churches of ministers effected under the presumed

authority of the resolution in question are without any force or effect under

the law of this denomination. Despite the difficulty of trying to anticipate and

speak to the consequences of specific decisions, since they may not in fact

develop, it nevertheless seems expedient to address some of the most obvi-

ous questions which may arise as a result of this decision. As the formal

judgment in this case will plainly state, the effect of the irregularity of all such

purported dismissals is — from the standpoint of the Presbyterian Church in

the United States — to restore all affected ministers and churches to the rolls

and under the authority of the Presbytery of East Alabama or, more properly,

to treat them as having never been properly removed from the rolls or

38a

authority of that presbytery and this denomination. Questions will presum-

ably then arise about the legal and practical implications of this adjudication

for the denomination and for directly affected churches and ministers. In the

case of *‘dismissed™ ministers of churches which were not **dismissed’’. the

ministers themselves might now seek formal dissolution of their pastoral

relationships under BCO 28-1. Failing this. their former churches should do

so under BCO 28-2 in order to clarify the status as a matter of record. Failing

either of these. (or concurrently therewith) the Presbytery may proceed

under the informal disposition procedure of BCO 11-3. officially to divest the

minister of any authority to exercise the office of minister in this denomina-

tion. This too would officially determine for the record the status in question.

The status of *‘dismissed** churches presents a more complex problem, and

where a minister of such a “dismissed” church has also been “‘dismissed’’.

the status of the church itself must first be officially clarified before that of the

minister can be addressed along the lines above suggested. Addressing the

problem of the *‘dismissed** church, it is of course first to be hoped that any

persons who as part of the dissident majority of the church may now exercise

or claim the right to exercise practical control over its property and affairs

will accede voluntarily to the authority of this judgment. relinquishing all

claim and turning over control of both property and affairs to such loyalist

members as may desire to assume control, or to presbytery if such elements

do not come forward. If they do not accede. events must await first the

initiative of loyalist elemer*s in the church who desire to invoke their rights

under church and civil law. Their rights under church law are as expressed in

this judgment — to be recognized and to act under church law as the congre-

gation of the particular church. Unless and until that church is hereafter

properly dissolved or dismissed by presbytery from connection with this

denomination in accordance with principles stated in this opinion and that in

the Anderson case, such rights will continue indefinitely in such persons

and future loyalist members. Their rights under civil law. essentially to

control of church property. follow from church law as embodied in its

constitution and the decisions of its courts, including this decision. If these

property rights are not voluntarily acceded to by opposing claimants, they

may only be vindicated in the civil courts.

In the case of any “‘dismissed** churches in which there may not now

exist loyalist elements willing to assume control or to take the necessary

initiatives under church and civil law to vindicate their rights under both, the

initiative for action must lie with presbytery. Its options certainly include

those of attempting practically to develop a viable congregation which can

assert its rights directly against any opposing claimants, and legally, of

dissolving the church if the former result cannot be achieved. BCO 16-7(9).

Finally, there may arise questions at congregation, session 2nd presby-

tery level about the rights of any former ministers and ruling elders who now

consider themselves to be associated with other ecclesiastical bodies but who

nevertheless attempt to participate in meetings of congregations, sessions or

of the presbytery. Here it is of course to be hoped and expected that such

Ce ee ee ee ee ee Dae ee Tt

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39a

persons will be guided by simple personal civility and propriety not to attempt

participation. If such efforts should nevertheless be made, appropriate pro-

cedures are available to avoid their participation or to challenge any actions

taken by church courts in which they purported to participate. These include

informal procedures for divesting individuals of membership and authority

under BCO 111-2 and 111-3 respectively; formal disciplinary proceedings for

deposition of officers under BCO 103-5, 107-5, 108-7; and complaint against

the action of any court under BCO 117-1.

Accordingly, it is the Preliminary Judgment of the Permanent Judicial

Commission that:

1) the action of the Presbytery of East Alabama in adopting the resolu-

tion in question is wholly unconstitutional, hence void and of no effect;

2) any actions taken thereunder by sessions, congregations, ministers,

or the administrative commission are similarly void and of no effect;

3) any ministers purportedly dismissed thereunder remain within the

jurisdiction of the Presbytery of East Alabama and subject to its constitu-

tional authority until dismissed in accordance with proper procedures; and

4) any churches purportedly dismissed thereunder remain within the

jurisdiction of the Presbytery of East Alabama and subject to its constitu-

tional authority.

As this Judgment accords with that of the Judicial Commission of the

Mid-South, the complaint under consideration is not sustained.

* * *

The Moderator put the following question: ‘‘Shall the

preliminary judgment of the Permanent Judicial Commission in

the General Assembly Complaint No. 1-1976, as above rec-

orded, be made the final judgment of the General Assembly?”

After a question from the floor the Moderator advised Com-

missioners from the Synod of the Mid-South that they were not

to vote on the question. There being no further questions and

no requests for clairfication, and upon vote of the Assembly,

the Moderator declared, *‘The preliminary judgment of the

Permanent Judicial Commission in the case of Robert Strong,

et al, complainants, versus the Judicial Commission of the

Synod of the Mid-South, Respondent, is now the final judgment

of the General Assembly, and the case is herewith closed.”’

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APPENDIX D

STATEMENT OF POSITION OF THE PRESBYTERIAN

CHURCH IN THE UNITED STATES ON PROPERTY.

EXCERPT FROM MINUTES OF GENERAL ASSEMBLY

— 1971, APPENDIX pp. 188-189.

The Permanent Judicial Commission has laboriously reviewed the Book

of Church Order as presently revised. the historic roots from which it grew,

the origin and formation of the Church, the structure and life of the Church.

the doctrine of the Church, and its tradition.

The Permanent Judicial Commission believes that a general revision of

Chapter 6 of the Book of Church Order is not merited at this time. It believes

that the provisions of Chapter 6 are sufficiently clear to respond to the

questions of ownership of property which are presented by the above

overtures.

The Permanent Judicial Commission recommends that the General as-

sembly adopt the following statement with respect to the overtures:

The following declaratory statement was adopted by the General As-

sembly in 1953 (Minutes, 1953, pp. 42. 143) after a study and recommendation

of a committee appointed for the purpose of studying the question and

reporting back with a recommendation for amendment to the Book of Church

Order. if found necessary.

**The beneficial ownership of the property of a particular church of the

Presbyterian Church in the United States is in the congregation of such

church and title may properly be held in any form, corporate or otherwise,

consistent with the provisions of civil law in the jurisdiction in which such

property is situated. The congregation, with, respect to such property, may

properly exercise any privilege of ownership possessed by property owners

in such jurisdiction. /n every instance nothing in the manner of tenure of such

property or the use thereof shall be in violation of the obligation of such

congregation to the body of the Presbyterian Church in the United States as

established by the Constitution of such Church. (Emphasis added.)

** Disposition of the property of a particular church rests in the will of the

congregation of that church. The congregation is that body of persons recog-

nized as members of that particular church by the respective courts of the

Church.’ (Assembly's Digest, p. 76) (Emphasis added.)

In 1967 the Presbytery of Potomac overtured the General Assembly to

make clear the Presbyterian Church, U.S. position regarding the ownership

of church property. The General Assembly reaffirmed its 1953 statement and

responded: *‘The Book of Church Order, when supplemented by the de-

claratory statement of the General Assembly of 1953, is sufficiently clear.””

(Minutes, 1967, p. 127.)

ee ee

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4la

The Book of Church Order provides that Presbytery has the authority to

receive and dismiss churches. Appellate procedure is outlined in Chapter 14

of the Form of Government and Part V of the Rules of Discipline.

It should be pointed out that Section 4-1(2) provides that upon organiza-

tion, the members of the congregation of a Presbyterian church shall enter

into a covenant and with uplifted hand ‘‘. . . solemnly promise and covenent

that they will walk together as an organized church, on the principles of faith

and order of the Presbyterian Church in the United States, . . .’’ (Emphasis

added.)

All persons who subsequently enroll themselves as communing mem-

bers on profession of faith of the particular church must first agree to submit

themselves to the government and discipline of the Church. (Section 210-

5(5), Directory for the Worship and Work of the Church.)

Ministers and other officers before ordination approve the government

and discipline of the Presbyterian Church in the United States, and Promise

subjection to their brethren in the Lord. (Form of Government, Section 29-3,

27-6.)

When any Minister, other officer or communing member feels that he

can no longer in good conscienke remain a part of the Presbyterian Church in

the United States, the Book of Church Order provides an honorable and

orderly procedure for separating himself from it. (Rules of Discipline,

Chapter 11.) .

Section 14-5 of the Book of Church Order sets forth the sphere of action

of each Church court and their interrelations to each other: **These courts are

not separate and independent tribunals. They have a mutual relation, and

every act of jurisdiction is the act of the whole Church performed by it

through the appropriate Church court.”’

Section 16-7 of the Book of Church Order provides that Presbytery has

the power to receive, dismiss, ordain, inst»'], remove and judge ministers, to

review the records of the Sessions, redress whatever they may have done

contrary to order, and take effectual care that they observe the Constitution

of the Church. The Presbytery further has the power to establish the pastoral

relation and to dissolve it at the request of one or both of the parties or where

the interest of religion imperatively demands it and, further, the Presbytery

has the power and authority to see that the lawful injunctions of the higher

courts are obeyed, to condemn erroneous opinions which injure the purity or

peace of the church, to visit churches for the purpose of inquiring into and

redressing evils that may have arisen in them, to unite or divide churches at

the request of the members, to form and receive new churches, to dissolve

churches and in general to order whatever pertains to the spiritual welfare of

the churches under its care. Further, the Presbytery has the power and

authority to appoint commissioners to the General Assembly of the Church

and to propose to the Synod or to the General Assembly such measures as

may be of common advantage to the whole Church.

It takes more than a name to become a Presbyterian Church, U.S. It

takes more than to profess the same faith as the Presbyterian Church, U.S.

42a

professes to become a Presbyterian Church, U.S. It takes a profession of that

faith and subjection to the government of that Church to make a Presbyterian

Church, U.S.

A Presbyterian congregation, with its officers, pastor, elders and

deacons, is a complete organization in itself, but it is not independent.

(Preface to the Form of Government, III, 1, 5.) It is a part of an extended

whole, living under the same ecclesiastical constitution, and therefore sub-

ject to the inspection and control of the Presbytery, whose business is to see

that the standards of doctrine and rules of discipline are adhered to by the

particular churches under its care. It is the court of review and control, over

all the sessions of the particular churches within its bounds. To the Presby-

tery are superadded the higher judicatories of Synods and General As-

semblies, as the means of preserving the standards of doctrine and discipline

on a more extended territorial scale.

Such has been the organization of the Presbyterian Church in Scotland,

from the time of John Knox to this date, and has been substantially followed

by the Presbyterian Church in England and the United States.

The foregoing represents the Presbyterian Church, U.S. position on

church property. This position is subject, however, to the civil laws of the

State where the property is situated. Generally, however, the civil courts

conclude that a congregation belonging to a religious denomination and

subject to the constitution, faith and doctrines thereof, cannot use its prop-

erty for a purpose which violates the relationship of the congregation to the

denomination.

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43a

he APPENDIX E

OPINION

OF

THE SUPREME COURT OF GEORGIA

Decided: Sept. 27, 1979

JONES et al.

Vv.

WOLF et al.

33126.

NICHOLS, Chief Justice.

1. The decision of this court in Jones v. Wolf, 241 Ga. 208

(243 SE2d 860) (1978), has been vacated, and the case has been

remanded to this court for further proceedings. Jones v.

ee | a P ( 77>

LEd2d ___), 47 L.W. 4962 (1979).

2. Georgia has adopted for use in church local schism

cases a ‘“‘presumptive rule of majority representation, defeasi-

ble upon a showing that the identity of the local church is to be

determined by some other means.”’ Jones v. Wolf, supra, 47

L.W. at 4965. That presumption is overcome under Georgia

law by an application of what has come to be known as ‘*neutral

principles’ of law — that is, ‘state statutes, corporate char-

ters, relevant deeds, and the organizational constitutions of the

denomination.’’ Crumbley v. Solomon, 243 Ga.

343( SE2d ) (1979). In deciding these cases, this court

has sought to avoid resolving church property disputes on the

basis of religious doctrine and practice. Serbian Eastern Or-

thodox Diocese v. Milivojevich, 426 U. S. 696, 710 (96 S. Ct.

2372, 49 LEd2d 151) (1976). Accepting the dictates of a church

court that decided which faction had the right of use and

enjoyment of church property, based upon church court reso-

lution of matters of religious doctrine or faith, was perceived by

this court as being contrary to the spirit of controlling law.

44a

Maryland and Virginia Eldership of the Church of God v.

Church of God at Sharpsburg, 396 U. S. 367, 368 (90 S. Ct. 499,

24 LEd2d 582) (1970); Jones v. Wolf, supra. Now clearly given

the choice to opt for either rule, this court chooses to adopt the

rebuttable presumption of majority rule.

3. The parties apparently did not argue the applicability of

Code Ann. § 22-5504 in their briefs filed in the Supreme Court

of the United States. Appellees had stipulated in the trial court

that this section applies only to churches having a congrega-

tional form of government. The Supreme Court of the United

States has expressed concern about why this section was not |

discussed in the opinion of this court in Jones v. Wolf, supra.

Jones v. Wolf, 47 L. W. at 4965. The existence of that stipulation

is the reason. Code Ann. § 22-5504, like its predecessor, Code

Ann. § 22-406, properly is to be construed as being applicable

only to churches having a congregational form of government.

See, Sapp v. Callaway, 208 Ga. 805 (69 SED2d 734) (1952.).

In applying Code Ann. §§ 22-5507 and 5508 to the present

litigation, this court is not concerned with the procedure by

which factions within the local church and the national church

decide which persons are ‘‘true believers”’ or ‘‘adherents to the

true faith’’. Rather, church documents will be considered only

insofar as they determine or assist in the determination of the

persons who are “‘entitled to possess and enjoy the property

located at 2193 Vineville Avenue in Macon, Ga.’’ Jones v.

Wolf, 47 L. W. 4962, at 4963. Stated otherwise, the only ques-

tion for the courts is ‘‘which of the factions within the local

congregation has the right to control the actions of the titlehol-

der, and thereby to control the use of the property . . .”’ Jones

v. Wolf, supra at 4966. The church documents in the present

case speak to resolution of doctrinal disputes. They are silent

as to which persons have the right to enjoy and to use the

church property in the event of a schism at the local level.

5. After our decision in Jones v. Wolf, 241 Ga. 208 (243

SE2d 860) (1978), this court applied the ‘‘neutral principles

doctrine’ in’a case in which two local church factions were

aligned against each other in litigation while the national

church chose to align itself with the one local group against the

iit oa re

45a

other. Crumbley v. Solomon, supra. The Supreme Court of the

United States has permitted Georgia to apply the principle of

presumptive majority rule to local schism cases, provided only

that this court shall articulate the method by which this pre-

sumption may be overcome. Jones v. Wolf, 47 L. W. at 4965.

The presumption may be overcome by reliance upon neutral

statutes, corporate charters, relevant deeds, and the organiza-

tional constitutions of the denomination. Crumbley v. Sol-

omon, supra at 343. A review of those sources discloses no

provision that would rebut the Georgia presumption of ma-

jority rule as to the right to control the actions of the titleholder

— that is, as to the right to possess, enjoy and control the use of

these church premises. This silence distinguishes the present

case from Crumbley v. Solomon, supra.

6. The judgment of the trial court is affirmed for the

reasons stated in this opinion.

Judgment affirmed.

All the Justices concur except Undercofler, P. J., and Jordan,

Hill and Bowles, J. J., who concur in the judgment only, and

Marshall, J., who dissents.

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APPENDIX F

OPINION

OF THE

SUPREME COURT OF FLORIDA

No. 51, 588

CRAIG MILLS, et al.,

Petitioners,

VS.

JOHN P. BALDWIN, etc., et all.,

Respondents.

[October 25, 1979]

ON REMAND

PER CURIAM

Upon a grant of certiorari, reported at U. S.

s , 99 S. Ct. 3105, 61 L. Ed. 878 (1979), the Supreme

Court of the United States vacated the judgment of this Court in

Mills v. Baldwin, 362 So.2d 2 (Fla. 1978), and remanded the

cause for further consideration in light of Jones v.

Wolf, _.___.U. §..._......, 9 &. Cl. Se, GI Gk. ee Fre

(1979). We have carefully reviewed Jones v. Wolf and find our

decision in Mills v. Baldwin to be not inconsistent with the

principles enunciated therein.

Accordingly, our decision in Mills v. Baldwin is hereby

reinstated and the cause is remanded to the District Court of

Appeal, First District, for proceedings not inconsistent with this

decision.

It is so ordered.